New criminal laws impact press freedom, need journalistic exception: Editors Guild

The Editors Guild of India (EGI) has voiced serious concerns about the newly introduced criminal laws, warning on Tuesday (30 July) that they will impact press freedom and journalistic work across the nation.

In an open letter to Union home minister Amit Shah, the EGI has raised concerns about the effect of the new criminal laws on journalism in India.

Reaffirming its longstanding commitment to upholding and protecting press freedom — the fundamental fourth pillar of democracy — as it has since its founding in 1978, the EGI said, 'Now, with the notification of the Bharatiya Nyaya Sanhita 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) to replace the Indian Penal Code 1860 and Criminal Procedure Code 1973, respectively, we feel there is even greater cause of concern.'

The letter adds:

The Guild's letter underscores that these provisions significantly expand police powers and diminish individual liberties, particularly impacting journalists. 

It also underscores the growing use of criminal code provisions and offensive speech laws to target journalists who have been critical of the government. 

The letter highlights that from 2019 to 2023, Parliament has passed several laws that greatly expand criminal regulations. It specifically cites amendments to the Prevention of Money Laundering Act, 2002, the Foreign Contributions (Regulation) Act, 2010, and the introduction of the Criminal Procedure Identification Act, 2022, as examples of legislation that increase police powers and limit civil liberties. 

Thence, the letter argues for a journalistic exception in filing FIRs, citing the frequent use of legal processes as a form of punishment against journalists, and notes: 'Far too often, we have seen that the process itself is the punishment.'

It has become a norm under several governments, both at centre and in the states — the letter says — to have criminal complaints filed against journalists by seemingly non-stage agents; they are, however, acting with the full support of the state machinery, and their complaints are readily registered as FIRs, with a strong possibility of the journalist's arrest.  

It hence stresses the need to protect the press from frivolous complaints and state action, regardless of the ruling party. 

With regard to the journalistic exception proposed, the EGI has argued that before a criminal complaint is registered as an FIR against a journalist, there should be an additional and thorough layer of review, adding:

The EGI acknowledges that this won't be an easy task, but has proposed a mechanism whereby any complaint against a member of the press must be:

• reviewed by a high-ranking police officer

• and also brought to the knowledge of the Press Council of India.

Together, the reviewiers' opinions would determine whether further investigation of the complaint/ information would be an unreasonable burden on the freedom of the profession and the freedom of expression of the mediaperson who is the alleged offender.  

'We feel some such set of guidelines can go a long way in preventing the misuse of these laws against journalistic activities,' concludes the letter.  

What the letter says

Below, we present verbatim excerpts from the EGI's letter.

On treason and the reintroduction of sedition 

Bharatiya Nyaya Sanhita 2023 [BNS] A. Treason (Section 152), and the re-introduction of 'sedition'

a. The purported removal of the offence punishable under Section 124-A of the IPC, traditionally known as 'sedition', was widely advertised at the time of passing the BNS. The section was put under abeyance by the Supreme Court in 2022, in response to a petition filed by the EGI challenging the law and after recording the Government's submission that it will reconsider the law. It is clear, however, that the removal of Section 124-A is only in letter but not in spirit, as it has been rechristened in the form of Section 152 BNS punishing 'acts endangering sovereignty, unity, and integrity of India'.  

b. Section 152 punishes conduct that 'excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India'. The kind of conduct is 'words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise' or a person who 'indulges in or commits any such act'.  

c. Section 124-A IPC punished someone who 'brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India' by way of 'words, either spoken or written, or by signs, or by visible representation, or otherwise', where 'disaffection' included 'disloyalty and all feelings of enmity'.  

d. The scope of physical conduct under Section 152 BNS is clearly broader than 124-A IPC, as it now goes beyond speech acts (written or oral) to also cover use of financial means to achieve certain alleged objectives.

On imputations prejudicial to national integration: 

a. Section 197 of the BNS corresponds to Section 153B of the IPC, but it contains an important addition — it criminalises any person who 'makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India'.

This is an extremely broad category of conduct. While there may be some means to determine 'false' information, there is no arbiter of what may be `misleading', and absolutely no objective means to determine when any purportedly false or misleading information 'jeopardises' the unity and integrity or security of India. What makes the provision even more problematic is that it is classified as a cognizable and non-bailable offence.

On organised crime and terrorism:

a. The BNS has introduced offences of Organised Crime (Section 111), Petty Organised Crime (Section 112) and Terrorism (Section 113) into the general criminal law. Prior to this, such crimes were prosecuted by way of specific statutes. In matters of organised crime, such statutes were passed by every state, largely modelled on provisions of the Maharashtra Control of Organised Crime Act 1999. Terrorism related offences had been dealt with under a federal statute, the UAPA.  

b. The potential for these offences to be misused for targeting journalists has become clear over the past decade. Organised Crime can include any person within its ambit who has two charge sheets or complaints against them pertaining to a host of allegations which can include mundane offences such as criminal breach of trust.  

c. The Terrorism offence is modelled on existing UAPA offences, which have been used with alarming alacrity against journalists. The introduction of Sections 111 to 113 in the BNS has not been accompanied by a repeal of these existing statutes at the state or federal level. What we have, then, is the possibility of the same alleged act being prosecuted under two separate statutes, which carry different procedural regimes for prosecution.  

d. Having the same offence prosecutable under two separate regimes, where one regime is clearly more severe in its curbing of personal liberty than the other, throws up critical issues of how police discretion shall be exercised when dealing with such cases.  

Bharatiya Nagarik Suraksha Sanhita 2023 IBNSSI

The BNSS contains a handful of critical changes that have significantly expanded the police power to prevent and investigate crime, at the expense of truncating protections for individual liberty. Besides being generally of concern for all citizens, the provisions are especially important for journalists.

On arrest and bail:

a. There is a marked change in the length of possible pre-trial incarceration during an investigation. The existing rule restricting detention in police custody to only fifteen days and that too within the first fifteen days of arrest, has been changed. Under Section 187 BNSS, it appears that now detention in police custody can be granted within the first forty days of arrest for cases where alleged offences are punishable up to 10 years, and within the first sixty days of arrest for cases where alleged offences are punishable beyond 10 years. The language is also unclear as to whether the maximum permissible period for detention in police custody is limited to fifteen days.  

b. There is an important change to provisions regarding default bail where persons have spent more than half the maximum possible jail sentence as an undertrial. Section 479(2) drastically alters this rule, specifying that in any case where the "investigation, inquiry or trial" is pending in "more than one offence or in multiple cases", it would nullify the mandate to release a person on bail. Since police invoke more than one offence routinely while registering cases, such a qualification has practically rendered the beneficial rule practically redundant.  

On powers of search and seizure:  

a. There is no change to the antiquated regime governing the search and seizure powers of police, barring insertion of 'electronic communication' and 'communication device' in Section 94 [which corresponds to Section 91 of the CrPCj.

The problems with that regime of search and seizure are well known and the subject of litigation that is pending before the Supreme Court. In essence, the regime (i) confers wide and arbitrary powers upon police enabling erosion of privacy disrespecting the proportionality principle and (ii) permits violations of the right against compelled self-incrimination.

On attachment and confiscation of the proceeds of crime: 

a. A significant new feature of concern is contained in Section 107 of the BNSS, which has inserted provisions for 'attachment, forfeiture or restoration of property'. In one fell swoop, BNSS now carries provisions akin to PMLA allowing for forfeiture of property of persons. The provisions are comparably broader and more draconian than the PMLA  

i. PMLA applicability is restricted to allegations arising in certain kinds of cases identified as 'Scheduled Offences' and enables attachment of property that may have been derived out of commission of these offences. However, Section 107 applies to property that may be derived or obtained, indirectly or directly, as a result of a 'criminal activity or the commission of any offence'.

ii. PMLA only allows for attachment of property during the pendency of a case, permitting the actual confiscation of property after a conviction is delivered by the criminal court. Section 107 BNSS allows for confiscations even without any conviction, and does not envisage any redressal mechanism in case a person is eventually acquitted at trial.  

b. The breadth of Section 107 makes it a highly charged tool in the hands of the police, allowing for targeting movable and immovable assets of any potential accused (read: the journalist/ news organisation) and even securing orders for confiscation all during the pendency of a trial.